Guantánamo: Six Years Of Injustice Need To End

10.1.08

Six years ago today, one of the most depressing icons of the twenty-first century opened for business. On January 11, 2002, the first of nearly 800 prisoners arrived at a hastily erected prison in the US naval base at Guantánamo Bay, Cuba. Leased from Cuba since 1903, under an extraordinary agreement that cannot be broken unless both countries agree to it, Guantánamo was specifically chosen because it was presumed to be beyond the reach of the US courts.

Camp X-Ray, January 11, 2002.

It was here that the US administration unveiled its novel approach to justice in the wake of the 9/11 attacks. Declaring that the prisoners –- henceforth to be referred to only as “detainees” –- were amongst the “worst of the worst,” President Bush insisted that he had the right to hold them not as prisoners of war protected by the Geneva Conventions, but as “unlawful enemy combatants,” who could be imprisoned indefinitely without charge or trial.

If trials were deemed necessary, these too would be innovative proceedings that owed nothing to international or domestic law. Under the terms of a military order signed by the President in November 2001, which authorized him to capture and detain any non-citizen he regarded as a terrorist anywhere in the world, these new war crimes trials, known as Military Commissions, were empowered to draw on secret evidence, obtained through torture, coercion or hearsay, which could be withheld from the detainee and his lawyers.

As hundreds of detainees arrived at Guantánamo in the first few months of 2002, the government’s rhetoric was undermined when Brigadier-General Mike Lehnert, the prison’s first commander, admitted, “A large number claim to be Taliban, a smaller number we have been able to confirm as al-Qaeda, and a rather large number in the middle we have not been able to determine their status. Many of the detainees are not forthcoming. Many have been interviewed as many as four times, each time providing a different name and different information.” In August 2002, a senior intelligence official also confirmed that all was not well in Guantánamo, telling the Los Angeles Times that the authorities had netted “no big fish” in Guantánamo, and that some of the prisoners “literally don’t know the world is round.”

Despite this, the administration was adamant that the reason that its offshore interrogation center was not providing a wealth of information about al-Qaeda and its operations was because the detainees had been trained to resist interrogation, and not because most of them had no information to offer. It was only revealed later that the majority of them had not been captured by US forces on the battlefield, but had been sold to them by their Afghan and Pakistani allies, at a time when bounty payments of $5000 a head for al-Qaeda and Taliban suspects were widespread.

The notorious US PsyOps leaflet offering Afghan villagers money for life in exchange for handing over al-Qaeda and Taliban suspects.

In an attempt to increase the intelligence yield, senior administration officials, including Defense Secretary Donald Rumsfeld, Vice President Dick Cheney and their close advisors, approved the introduction of explicit torture techniques – euphemistically referred to as “enhanced interrogation techniques” –- which included prolonged solitary confinement, forced nudity, forced grooming, sexual and religious humiliation, sleep deprivation, the use of extreme heat and cold, and the use of painful stress positions. These techniques certainly increased the amount of information produced, but Lieutenant-Colonel Anthony Christino III, a senior military intelligence officer, who was responsible for analyzing the intelligence produced from Guantánamo, told the journalist David Rose that there was no dramatic improvement in the quality of the intelligence, only an attempt to “improve the way it was packaged.”

It was not until June 2004 that attempts by lawyers to make Guantánamo conform to US law, which had begun almost the moment Guantánamo opened, reached the Supreme Court. In a momentous decision, the justices ruled, by a majority of six to three, that the detainees had the right to challenge the basis of their detention, demolishing, along the way, the administration’s long-cherished belief that Guantánamo did not count as US territory. In his majority opinion, Justice John Paul Stevens emphasized the importance of habeas corpus, citing a historic case that dealt specifically with the detention of aliens in US custody, in which it was stated, “Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed or exiled save by the judgment of his peers or by the law of the land.”

This decision finally allowed the detainees to have access to legal representatives, but the administration refused to allow them anywhere near a courtroom. Instead, the Pentagon introduced military tribunals –- Combatant Status Review Tribunals –- to review whether they had been correctly designated as “enemy combatants” when they were captured. These drew largely on the forced confessions produced in the “enhanced interrogations” – both in Guantánamo and in an array of secret prisons where other “high-value” detainees were held – and their less severe, but equally worthless counterparts: confessions produced in return for favorable treatment, which only encouraged the creation of another web of lies.

Nevertheless, the story of Guantánamo on its sixth anniversary is not as grim as it could have been. Through diplomatic negotiations, and, to a lesser extent, through decisions made in the tribunals and their successors, the annual Administrative Review Boards, 492 detainees have now been released from Guantánamo, and the majority are at liberty in their home countries and, in a few cases, in Albania, the only country that could be prevailed upon to accept cleared detainees who feared returning to the countries of their birth.

For the 281 detainees who remain, however, the prison is still a horrendous affront to justice. As many as 70 have been cleared for release, but cannot be repatriated because of fears that they will be tortured on their return. Blind to the irony of the situation, the administration has also been largely thwarted in its attempts to find other countries to accept these men, and has resorted to signing “memoranda of understanding,” designed to guarantee the detainees’ humane treatment, with countries including Tunisia and Libya, whose human rights records are notoriously poor.

At present, the authorities’ callous attempts to wash their hands of their own responsibility for the fates of these men have been put on hold. After two Tunisians, returned in June, received prison sentences following trials that were regarded by observers as grossly unjust, a US district court judge prevented the return of a third Tunisian, and it remains to be seen what new plan the administration can conceive of to rid itself of its own mistakes.

The administration also proposes that 80 of those still held –- including the few dozen, like Khalid Sheikh Mohammed, the architect of 9/11, who can be objectively regarded as truly dangerous –- will be tried by Military Commission, but it has yet to be established that the Commissions can actually function. Plagued by setbacks, including a Supreme Court defeat in 2006, criticism from its own government-appointed judges, and implacable opposition from the military lawyers assigned to defend the detainees, their only success was in March last year, when the Australian David Hicks accepted a plea bargain, admitting to “material support for terrorism” and dropping his well documented claims of abuse by US forces, in exchange for a nine-month sentence in Australia, which has just come to an end.

As for the rest of the detainees, although many will no doubt be freed in the months to come, the prevailing injustice at Guantánamo is best summed up by the manner in which they are regarded by the administration: as too dangerous to be released, but not dangerous enough to be charged. Six years after Guantánamo opened, it’s time that such arrant, unprincipled and highly damaging nonsense came to an end.

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Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer. Email Andy Worthington